In a recent response to the Solicitors Regulation Authority’s proposed fining guidance, the Birmingham Law Society (BLS) has voiced strong objections, describing the strategy as a problematic ‘Robin Hood’ approach.
The BLS has criticised the SRA’s methodology of calculating fines based on the income of firms and individuals, likening the approach to the infamous historical figure who redistributed wealth. According to the BLS, the fines should correspond to the severity of the breach rather than the financial status of the entity involved. The committee categorically stated, ‘A fine is like any other sanction. It must fit the seriousness of the breach.’
The BLS highlighted a lack of compelling evidence from the SRA to support its assertion that enhanced fining bands and minimum fines would serve as an effective deterrent and be in the public interest. They pointed out that over 90% of those fined were first-time offenders, suggesting that reputation damage and the anxiety of an investigation served as adequate deterrents rather than increased financial penalties.
The proposed fines, determined by gross turnover for firms and gross income for individuals, were also deemed unfair by the BLS. This calculation method was described as bearing ‘no relation whatsoever to the financial position of the firm or of the individual concerned.’
The Society further expressed concern about the potential adverse effects of higher fines on small practices, legal aid providers, sole practitioners, and minority groups. There is a fear that such financial penalties could threaten the survival of smaller entities that operate within essential but lower-paid sectors of the legal market.
A major criticism from the BLS was the perceived lack of independence in the SRA’s decision-making process. They argued that the SRA acts as investigator, prosecutor, and judge—a combination that might breach natural justice principles. ‘It is said that the SRA acts as investigator, prosecutor and judge within the same organisation. It has fused these three functions which can offend the rules of natural justice,’ they argued. BLS called for a separation of investigation and sanction decision-making functions.
The Society also vehemently opposed the introduction of minimum fines at the proposed high levels, arguing that such measures would circumvent a thorough consideration of individual case facts. They advocated for adjudicators to evaluate each case based on its specific details and suggested that serious breaches should be addressed by the Solicitors Disciplinary Tribunal, where there is an available scope for unlimited fines.
Committee chair Jayne Willetts articulated the BLS’s concerns, stating, ‘We remain concerned by this ‘Robin Hood’ type approach where fines are calculated according to the financial worth of the firm or individual. A fine is like any other sanction. It must fit the seriousness of the breach. Financial worth is relevant to the ability to pay not to the size of the fine.’ Willetts also questioned the SRA’s autonomy in approving fines up to £500,000 without independent oversight.
The Birmingham Law Society’s critique underscores significant concerns regarding the SRA’s proposed fining strategy, highlighting issues of fairness, independence, and the potential negative impact on smaller and marginalised firms. These points emphasise the need for a balanced approach that considers the broader implications of such regulatory changes.
